from the silent-killer dept

Those defending bulk domestic surveillance have dismissively referred to the take as "just metadata." To many people, this likely seems acceptable. It's nothing but call records... or so it often seems. But "just metadata" is actually surveillance state slang for almost anything that can be obtained without a warrant or subpoena -- which includes anything the government considers to be a "third party record," like financial transactions and historical cell site location data.

"Just metadata" is actually a dangerous thing when left in the hands of intelligence agencies. It's what turned State Department advisor Robin Raphel's diplomatic work with Pakistani officials into a severely misguided -- and severely intrusive -- espionage investigation. A series of blundering investigations into people who had done nothing wrong resulted in the DOJ changing its investigative guidelines, but not before Raphel's house was raided (twice) by the FBI and her reputation severely damaged.

In February 2013, according to law-enforcement officials, the FBI received information that made its agents think Raphel might be a Pakistani mole.

The tip came in the form of intercepted communications that suggested Raphel had shared sensitive inside information without authorization. Two officials said this included information collected on wiretaps of Pakistani officials in the U.S.

[...]

Investigators began what they call “circling the target,” which means examining the parts of Raphel’s life they could explore without subpoenas or warrants.

[...]

One of the first things they looked at was her “metadata”—the electronic traces of who she called or emailed, and also when and for how long. Her metadata showed she was in frequent contact with a host of Pakistan officials that didn’t seem to match what the FBI believed was her rank and role.

The reason Raphel worked outside of her "rank and role" was because staying within the system meant dealing only with Pakistani officials who would be unable or unwilling to part with useful information. Raphel had plenty of experience in dealing with Pakistan's often-volatile relationship with the US -- something that had been strained even further by President George W. Bush's anti-nuke sanctions and President Obama's increasing reliance on drone strikes, including one that mistakenly killed 24 Pakistani troops, rather than the target the US was seeking.

Raphel may have operated outside of her "rank and role," but she was still aligned with the US's goals, rather than pursuing her own agenda. Apparently, nearly four decades of service to the US government meant nothing. Spurred on by the Snowden leaks, the FBI had a renewed interest in hunting down potential "threats." This is what moved the investigation from mere metadata to something far more intrusive.

After months of circling the target, FBI supervisors decided it was time to delve deeper. To monitor Raphel’s private conversations with Lodhi and other contacts on Skype, the FBI obtained a warrant from the Foreign Intelligence Surveillance Court—a decision approved at the highest levels of the FBI and the Justice Department.

The FBI used these communications to build a case against Raphel. It still had nothing that showed criminal intent or actually anything resembling wrongdoing. But it did -- with its limited experience in dealing with diplomatic targets -- feel something wasn't quite right. It had lots of "smoke" but no "smoking gun," according to a former FBI official. It dumped a bunch of "smoke" into an affidavit and secured a "sneak and peek" warrant for Raphel's home. After an extensive search, it managed to locate a 20-year-old file related to Raphel's "Diplomatic Security" investigation. Something of little consequence to anyone -- especially this far removed from its originating date -- was used to justify the FBI's more intrusive search later, one that resulted in Raphel's electronic devices and computers being seized.

The search also led to perhaps the most incongruous question Raphel had ever been asked.

Two FBI agents approached her, their faces stony. “Do you know any foreigners?” they asked.

Raphel’s jaw dropped. She had served as a diplomat in six capitals on four continents. She had been an ambassador, and the State Department’s assistant secretary for South Asian affairs. Knowing foreigners had been her job.

“Of course,” she responded, “Tons…Hundreds.”

This was followed by more FBI activity that bore the unmistakable imprint of recently-installed director James Comey. The FBI routed its inquiries with the State Department to someone who wouldn't talk to anyone else about its actions. It forbade the State Department from informing Raphel's coworkers why she wouldn't be returning to work while simultaneously leaking news of the investigation to the New York Times.

The FBI finally began talking to other State Department officials and employees, most of whom felt they had to explain how diplomacy actually worked. They didn't like what they saw in the FBI's "mole-hunting" effort.

At times, Raphel’s colleagues pushed back—warning the FBI that their investigation risked “criminalizing diplomacy,” according to a former official who was briefed on the interviews.

The interviews undercut the FBI's narrative, but it did nothing to slow the agency's roll towards an indictment. The DOJ, however, seemed less sure of the merits of a prosecution. But it also did little to head the FBI off. Meanwhile, Raphel not only lost her career but also her life savings.

Raphel heard nothing for months from the FBI. She had already spent about $100,000 on legal fees, which she paid by tapping into her savings, but the bills were piling up. Jones set up a legal-defense fund and 103 of Raphel’s friends and colleagues, mostly from the State Department, donated nearly $122,000.

The 20-year-old document on which the prosecution hinged could very well have been declassified while the government pursued a conviction, leaving it with nothing but thousands of taxpayer dollars spent and the embarrassment of being unable to determine the difference between diplomatic activity in volatile outposts from actual espionage.

The charges were finally dropped in March of this year. To date, Raphel's security clearance is still revoked and her career as a diplomat is effectively over. This is what "just metadata" -- along with a newfound enthusiasm for hunting down "insider threats" -- can do to a person who spent nearly 40 years serving their country.

from the deck-the-halls dept

It's the holiday season, that time of year when many people shrug off the comforting fullness surrounding the far-superior holiday of Thanksgiving for the stressful gift-bonanza of Christmas. What is billed as a time of peace and happiness too regularly instead is anything but. And it seems that Christmas itself occasionally plays a role in the tumult.

Up in Canada, a Toronto-area shopping mall and a male model are currently battling over who gets to control the rights to "Fashion Santa." Paul Mason played the role of Fashion Santa for the Yorkdale Mall in each of the past two Christmas seasons, donning white hair and a magnificent beard along with designer clothes, taking pictures with shoppers and generally being a fashionable representation of Santa Claus. After he refused to reprise his role this year, Yorkdale hired Adam Martin to fill in for him. Mason says the mall cannot do this, because he has a copyright on "Fashion Santa."

Records published by Industry Canada’s intellectual property office show that a copyright for Fashion Santa was registered to Mason on Dec. 22, 2015, and was in the works no later than September, 2014 — three months before Mason debuted as Fashion Santa at Yorkdale...Intellectual property regulations laid out on Industry Canada’s website say copyright protects works of literature, art, drama or music, and “performer’s performances.”

The problem with this is that Canada, like the United States, limits copyrightablity to expressions, not ideas. That would make any copyright on the public performance of being a "fashion Santa" limited in scope to a creative performance in the role. Mason instead seems to believe that his copyright gives him the sole right to the name and to any kind of performance for any kind of fashionable Santa. The latter just isn't the case, while the former is typically the realm of trademark law as opposed to copyright.

And, when it comes to trademarking "Fashion Santa", it seems the mall got there first.

Government records also show Oxford Properties Group Inc., which manages Yorkdale, filed applications on Dec. 8, 2015 to trademark the words “Fashion Santa,” and “Yorkdale Fashion Santa.” Mason applied for a trademark on “Fashion Santa” less than two weeks later, on Dec. 21, 2015.

At least one lawyer commenting on the dispute seems to think Yorkdale would win if this ends up in court, primarily because trademark law is more applicable.

John Simpson, an intellectual property lawyer who is not connected to the case, said a trademark could be issued to the mall even though Fashion Santa is copyrighted by Mason.

“My money would be with the mall,” he said.

Simpson said that, although a character or costume can be copyrighted, he is surprised a copyright was registered for Fashion Santa.

“A character is more than a name,” he said. “And if it’s just a name then it (should be) a trademark.”

Ultimately, even carving out a trademark space for a Santa Claus character that is only unique in that it wears fashionable clothes seems rather silly. Still, in these trying times, it seems that even Santa Claus is a battleground for intellectual property disputes. 'Tis the season, and all that.

from the play-ball! dept

For some time now, I've been ringing the warning bell for cable television providers that the cord-cutting trend has only thus far been prevented from becoming a deluge by live sporting events. It's one thing to watch TV dramas and reality programming either in binge-fashion or streaming days after the original television airing, but live sports is still a major draw for cable TV audiences. Because of the combination of broadcast partner deals many of the leagues have worked out with cable providers and the nature of the sports product, this may be the last bastion of hope for cable TV as we know it today.

But that thread of survival continues to unravel. In the past two years or so, we've seen the major athletic leagues begin to open up on the concept of live-streaming games. The NFL was among the first of the major players to ink toe-in-the-water streaming deals, but the NBA and MLB have followed closely behind. And while those deals are meager and fragmented in terms of the streaming providers in question, it's worth noting that Amazon is reportedly targeting sports streaming generally as a way to expand its Prime product.

Amazon apparently never stops thinking about possible perks it could add to its annual $99 Prime membership, and the next feature could be live sports. A report from The Wall Street Journal suggests that Amazon is in talks with professional sport organizations including Major League Baseball, National Basketball Association, and the National Football League to negotiate the rights to stream live games and events.

According to the report, Amazon is looking at creating a premium sports package that it could include in Amazon Prime memberships. If it comes to fruition, a sports package could draw a lot of new customers to Prime, which already offers free two-day shipping, Amazon Video streaming of TV shows and movies, music streaming with Prime Music, the Prime Reading library of free e-books, and more. It would also be a big way for Prime to stand out among other streaming services, particularly Netflix, which has steered clear of sports since most people don't want to watch a football game after it's over.

The barrier to all of this, of course, is that those leagues already have broadcast deals in place with television providers. That is particularly the case with the MLB and the NBA, which both rely heavily on cable networks to broadcast their games. The NFL, on the other hand, has long partnered with the "local" national networks, CBS, NBC, and Fox. It therefore may have more room in which to wriggle into streaming sports, demonstrated by the fact that it has already done so in its Yahoo! deal. Regardless, one of the streaming titans getting into sports streaming, should it happen, should be setting off all kinds of warning bells for the cable companies.

In a time when streaming services are incredibly popular, live sports is a major reason people still pay for pricey cable packages. A good example is DirecTV, which saw a big subscriber bump when it began offering the premium NFL Sunday Ticket package.

With the market penetration for smart TVs and devices that allow streaming to be beamed to non-smart TVs, this interest by Amazon represents a major landshift in the cable TV market. Streaming services like Prime can be more nimble with pricing, as well, as they don't have to adhere to the practices of packaging undesirable content along with the channels and shows that consumers actually want. And, what's more, Amazon's interest here is likely to spur its competition to get into sports streaming as well, if only to keep up with the Amazonian Joneses.

Even if this takes a while to get rolled out due to existing broadcast contracts, the end may be nigh for cable television as it currently exists.

from the legislators-forced-to-lower-middle-fingers-previously-extended-to-public dept

Last month, Pennsylvania legislators wrapped up a little gift for the state's law enforcement agencies: a bill that would have allowed agencies to withhold the names of officers involved in deployments of deadly force for at least 30 days. This was just the mandatory withholding window. The bill never stipulated a release date past that point, meaning "never" was also an acceptable time frame.

The normal concerns for "officer safety" were given as the reason for the new opacity. Rather than see disclosure as an essential part of maintaining healthy relationships with the communities they served, law enforcement agencies saw disclosure as just another way to hurt already very well-protected officers.

The DOJ itself -- often a defender of entrenched police culture -- recommended a 72-hour window for release of this information. State legislators, pushed by local police unions, felt constituents would be better served by being kept in the dark. Given the back-and-forth nature of public sentiment, it was unclear how Governor Tom Wolf would react to the passed proposal.

Fortunately, Governor Wolf has seen the bill for what it is: something that further distances police officers from the people they serve. In a letter [PDF] announcing his veto of the bill, Wolf points out the law would have done far more harm than good. (via PINAC)

Government works best when trust and openness exist between citizens and their government. I cannot agree to sign this bill, because it will enshrine into law a policy to withhold important information from the public.

The legislation as drafted would prevent the disclosure of a police officer's name in a situation where an officer takes the life of an unarmed person. These situations in particular -- when law enforcement uses deadly force -- demand utmost transparency, otherwise a harmful mistrust will grow between police officers and the communities they protect and serve. Transparency and accountability are required of all public employees, but this bill ignores the reality that a police officer is a public employee.

Wolf also points out that law enforcement agencies aren't being served by this bill either. The bill would make it illegal to release officers' names before thirty days have elapsed, even if individual agencies feel an earlier release would defuse tensions and/or protect uninvolved officers from being subjected to unfocused criticism or abuse.

The proponents of the bill have little concern for community relationships nor the well being of uninvolved officers. All they want to do is add more opacity to law enforcement and erect a stronger shield over some of the government's most problematic employees. Fortunately, the state's governor saw the damage the bill would create and refused to become part of the problem.

from the so-why-isn't-it-encouraged-more? dept

A legal dispute that goes back in some form or another to at least 2001 has resulted in the 5th Circuit Appeals court thankfully reminding people that patent infringement is actually good for competition. To say that the details and background of this case are confusing and convoluted would be... quite an understatement. If you want to read the background in the full ruling, go ahead, but I'd recommend bringing along a white board, a compass and a large Thermos of coffee. Let's just say that two companies that make different versions of retractable syringes, RTI and BD, have been less than happy with each other for many years, and there have been some lawsuits covering a variety of different theories for why RTI doesn't want BD selling safety syringes (or, if not stopping the company from doing that, compelling it to fork over lots of money to RTI). There have been patent claims, antitrust claims, unfair competition, false advertising and some more. It's... convoluted. While the court's background explanation is convoluted as anything, where things came down recently was that RTI argued that BD's patent infringement (which had already been ruled on by the court earlier in this neverending saga) was also a form of an antitrust violation. Even this part is confusing, because RTI has a few different reasons for why it argues BD is violating antitrust law, with only one of them being its infringement of RTI patents.

Of course, if you're playing along with the home game, you should already be scratching your head. After all, patents themselves are monopolies. So, if anything, you'd think that any antitrust argument would be focused on the patent holder rather than the patent infringer. But, here, RTI is arguing that the patent infringement itself is a form of an antitrust violation, as it's part of BD's effort to foreclose competition. But... again, that makes no sense, and the appeals court rightly calls this out and notes that patent infringement doesn't block competition -- it actually increases competition:

Patent laws are designed to secure for patent holders a time-limited exclusive right to exploit their discoveries, but this is “not the kind of public purpose protected by the antitrust laws,” which seek to “protect the free flow of interstate commerce.”... That a patentee may anticompetitively extend its market power to products other than those covered by a patent, and thus violate the antitrust laws, is well settled... RTI, however, cites no case holding the converse: that antitrust liability may be founded in whole or in part upon patent infringement. By definition, patent infringement invades the patentee’s monopoly rights, causes competing products to enter the market, and thereby increases competition. RTI, in fact, persuaded another jury of exactly this procompetitive result when it proved patent infringement by BD’s 1mL Integra safety syringe. The judgment against BD, which was then forced to remove the competing product from the market, diminished competition but enforced RTI’s patent rights.

Of course, this doesn't mean that patent infringement is legal -- it's not. But at the very least, the court is shutting down the positively nutty argument that patent infringement might also be an antitrust issue, even though it increases competition rather than decreases it.

from the shame:-the-universal-motivator dept

One of the reforms included in the USA Freedom Act is the actual ability to challenge National Security Letter gag orders. Prior to the passage of this bill, recipients were limited to challenging gag orders once per year -- challenges that rarely succeeded. The process is no longer restricted to annual challenges, but many recipients won't be aware of this fact because the FBI hasn't been interested in telling them.

The NSL we received includes incorrect and outdated information regarding the options available to a recipient of an NSL to challenge its gag. Specifically, the NSL states that such a challenge can only be issued once a year. But in 2015, Congress did away with that annual limitation and made it easier to challenge gag orders. The FBI has confirmed that the error was part of a standard NSL template and other providers received NSLs with the same significant error. We don’t know how many, but it is possibly in the thousands (according to the FBI, they sent out around 13,000 NSLs last year). How many recipients might have delayed or even been deterred from issuing challenges due to this error?

Having been caught using outdated boilerplate, the FBI will now be sending out thousands of correction letters [PDF]. It's not as though the FBI wasn't aware of the changes in the laws governing NSLs. It likely found it more conducive to its secrecy aims to allow the old boilerplate to remain until recipients caught on.

Not only will the FBI be updating its NSL boilerplate, but it has apparently been shamed into transparency… at least in this particular case. The gag order on this NSL has been dropped and the Internet Archive is allowed to publish the redacted request.

The request asks for all personal information related to the targeted accounts from "inception to present." But there's another problem with the request which goes beyond outdated boilerplate. As the EFF's letter to the FBI [PDF] points out, the Internet Archive isn't the sort of entity the FBI can actually serve an NSL to.

18 U.S.C. 2709 is inapplicable to the Archive in this matter because the Archive is a library. Under 2709(g), the FBI cannot issue an NSL demanding records -- or imposing a nondisclosure requirement -- to libraries unless they are providers of wire or electronic communications services. The NSL does not specify which of the Archive's services it seeks records from and thus does not identify any context in which the Archive is a provider of a wire or electronic communication service.

The letter also points out that the FBI's gag order is unconstitutional prior restraint, something that runs contrary to the First Amendment. Of course, it's one thing for an NSL recipient to make this allegation. It's quite another to have it confirmed by a federal court. The EFF's constitutional challenge of NSL gag orders is currently awaiting review by the Ninth Circuit Court of Appeals. Whatever conclusion the court arrives at, there's little doubt that it will ultimately make its way to the US Supreme Court. Whether or not the Supreme Court decides to address it is likely still at least a year or two away.

But the voluntary lifting of a gag order by the FBI is a positive development -- one that suggests the more these orders are challenged, the more often the government will discover its demands for indefinite secrecy are rarely supported by the facts of the case.

from the the-high-ground-is-sinking dept

Last week, we wrote about the atrocious treatment of famed Canadian reporter Ed Ou by the US's Customs & Border Patrol agents. Ou was on his way to document the protests over the Dakota Access Pipeline and he was detained, had his devices confiscated and searched, and then was denied entry into the US. And, of course, as we've seen before in similar stories, Homeland Security's response to these sorts of stories is to shrug and basically say "we don't have to tell you anything."

Turkey’s General Directorate of Press and Information (BYEGM) on Friday accused countries critical of Turkey’s media environment of turning a blind eye to press freedoms in their own jurisdictions.

Research compiled by the body questioned Western states’ claims that freedom of the press was unlimited in their countries.

Recalling that among the countries frequently criticizing Turkey were France, Germany, the U.K., Sweden, Spain, the Netherlands and the U.S., the BYEGM research questioned whether journalists and other media workers were able to work freely in these nations.

The research presented examples of constraints and censorship faced by media workers in those countries.

And, of course, one of the examples used, is what US Homeland Security did to Ou, among other examples, including the arrests of journalists covering the protests in Ferguson, Missouri, two years ago.

Friday’s BYEGM statement recalled an incident in October involving a Canadian journalist called Edward Ou who wanted to shoot video of Native Americans protesting against a pipeline planned for Dakota state in the U.S.

"He [Ou] was not allowed to enter the U.S.," the BYEGM said, adding: "Edward Ou was held at the border for six hours and during this time his telephone and cameras were confiscated.”

In the U.S. “14 journalists, including Anadolu Agency, Die Welt and Bild correspondents” were arrested amid unrest in Ferguson, Missouri, following the fatal police shooting of a black man in 2014.

The BYEGM went on to state: "In Baltimore incidents, City Paper's photo editor JM Giardano was beaten by the police and photographer Sait Serkan Gurbuz, who was working for Reuters, was taken into custody.”

In July 2016 the Middle East correspondent of the Wall Street Journal, Maria Abi-Habib, “was taken into custody by the U.S. Department of Homeland Security on the grounds that she was a journalist 'traveling dangerous locations'".

Of course, there's a massive difference in the (yes, wrongful) arrests and detainment of journalists in the US over reporting with the purposeful jailing of journalists, including charging some with horrific crimes, in Turkey. But by not stopping this ridiculous bad behavior, such as what happened to Ou with border agents, we're handing Turkey and other authoritarian regimes an easy excuse to continue their efforts to completely eradicate a free and open press.

from the good-deals-on-cool-stuff dept

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from the how-are-these-people-in-power? dept

It appears that the "nerd harder" disease has spread across the Atlantic, and none other than the UK's Health Secretary, Jeremy Hunt, has caught it. In discussing the (frequently overhyped, but still real) issues of cyberbullying and sexting, Hunt has decided that it's no problem at all, because the nerds can put their minds to it and magically block it:

“I think social media companies need to step up to the plate and show us how they can be the solution to the issue of mental ill health amongst teenagers, and not the cause of the problem,” he said. “There is a lot of evidence that the technology industry, if they put their mind to it, can do really smart things.

“For example, I just ask myself the simple question as to why it is that you can’t prevent the texting of sexually explicit images by people under the age of 18, if that’s a lock that parents choose to put on a mobile phone contract. Because there is technology that can identify sexually explicit pictures and prevent it being transmitted.

“I ask myself why we can’t identify cyberbullying when it happens on social media platforms by word pattern recognition, and then prevent it happening. I think there are a lot of things where social media companies could put options in their software that could reduce the risks associated with social media, and I do think that is something which they should actively pursue in a way that hasn’t happened to date.”

And I ask myself, how the hell do modern countries allow people so clueless and ignorant into positions of power? How can it possibly be that someone with this much power and authority can't understand that context matters and that calling for outright censorship without context would be a disaster? It's the very epitome of the "nerd harder, nerds" plan that comes up so often. "If they put their minds to it, they can do really smart things."

It feels like all of these powerful people have internalized the flipside of the famed Arthur C. Clarke quote about how "any sufficiently advanced technology is indistinguishable from magic," and interpreted it to mean "tech can do magical things." But as cryptographer Matt Blaze famously noted, ignorant officials saying "surely if we can put a man on the moon we can do this" is like saying "surely if we can put a man on the moon, we can put a man on the sun." Some things are not doable, no matter how many nerds you throw at it.

You'd think that people in charge of, say, the healthcare of a nation, might at least recognize when they're too ignorant to understand the difference between the possible but difficult, and the impossible. Apparently not.

from the patch-notes-to-be-entered-as-evidence-in-inevitable-civil-lawsuit dept

Software updates are seldom painless. The history of the Windows operating system is littered with stories of computers/programs bricked by auto-update patches and OS iterations. They're not much fun on the IT end either, especially when businesses depend on functioning computers/programs for pretty much everything. An enterprise-level OS upgrade can take days or weeks -- and that's not counting the aftershocks which continue for months after as every interdependent application finds new and exciting ways to clash with the upgraded system software.

Days, weeks, months chewed up by an upgrade. It's horrible, but hey, at least you're still relatively free to step outside periodically and/or exit the building when you've had enough for one day. It could be much much worse.

Take the example of Andrew.

It was Saturday and he was woken up with a start by his mother. There were four officers at the front door and he was about to be arrested.

"I’d only had four hours sleep and I’m only wearing gym shorts,” he recalled.

“I’m thinking, what happened? I was completely confused.”

Unbeknown to his parents, 24-year-old Andrew - not his real name - had recently finished a six-month drug programme after he was caught in possession of marijuana and ecstasy.

Which is why he was so confused. It was his first offence and he had done the course as asked. A judge had then told him the case had been dismissed.

“I did what I was supposed to."

But the court’s new computer system had other ideas and Andrew was put into a police car and driven off to jail.

The computer system is Odyssey, California's new case management software. So far, attempts to integrate it with the existing system have resulted in multiple rejections of the donor. If this had only resulted in a less smoothly-flowing bureaucracy, that would be one thing. Instead, it's ruining people's lives.

The company behind it -- Tyler Technologies -- calls the transition "challenging." That's one way to put it -- a way that only those not adversely affected by the transition can put it. To those on the receiving end of a raft of new case management errors, the transition can more accurately be described as "nightmarish." In addition to the case described above, the upgrade has resulted in wrongful arrests, incorrectly extended sentences, and misdemeanor offenses being reclassified as felonies.

Nothing on this list of problems could be considered a harmless error. The last one on the list could result in job hunters, prospective tenants, parents in custody battles, etc. being kicked to the curb when their moving violations show up in background check systems as serious felonies.

On the plus [?] side, Odyssey's malfunctioning software has also managed to produce a few criminal justice "winners."

Alameda County is not the only area to have struggled with Odyssey. Similar problems have been reported in Tennessee and also in Indiana - where prosecutors have had a perhaps more troubling issue of inmates being mistakenly released early.

The software will continue to be upgraded and lives will be bricked. Those the software has determined need more time served or felonies added to their record are pretty much on their own. Alameda County public defender Brendon Woods is fielding as many cases as he can, but he seems to be one of the only ones interested in assisting victims of a "challenging" system upgrade. The county itself isn't offering anything to these victims and the software company certainly doesn't want to open itself up to liability by admitting any culpability in this debacle.

The criminal justice system barely works. The last thing it needs is software that makes this even worse.